In re S.G.-1 ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re S.G.-1
No. 22-0040 (Wyoming County 20-JA-39)
MEMORANDUM DECISION
Petitioner Father S.G.-2, by counsel Lela Walker, appeals the Circuit Court of Wyoming
County’s December 14, 2021, order terminating his parental rights to S.G.-2. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Andrew
Waight, filed a response in support of the circuit court’s order. The guardian ad litem, Latachia
Miller, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights because it did not
comply with Rule 27 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
The proceedings began in July of 2020 when the DHHR filed a petition alleging that the
child’s mother and another adult respondent abused and neglected the child due to substance abuse.
At that time, the DHHR named petitioner as a respondent to the proceedings but did not include
allegations against him. After several continuances, the court held a preliminary hearing which
petitioner did not attend, although he was represented by counsel.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990). Additionally, because the child and petitioner share the same
initials, we will refer to them as S.G.-1 and S.G.-2, respectively, throughout the memorandum
decision.
1
In July of 2021, the DHHR filed an amended petition alleging that petitioner abandoned
the child. According to the amended petition, the child had been in the DHHR’s custody for
approximately one year, and petitioner had not appeared at any hearings. Further, the DHHR
alleged that petitioner contacted the DHHR only once while the child was in their custody.
According to the DHHR, petitioner requested visits with the child in December of 2020, but when
the service provider attempted to contact petitioner at the number he provided, petitioner did not
respond. The record shows that following the filing of the amended petition, petitioner’s counsel
was granted at least two continuances of the preliminary hearing because petitioner was not
present.
The matter came on for an adjudicatory hearing in October of 2021. Petitioner again was
not present, but was represented by counsel. A Child Protective Services (“CPS”) worker testified
that petitioner had not had any involvement with the child since the original petition was filed and
confirmed that petitioner contacted the DHHR only once to request visitation with the child but
failed to remain in contact with the DHHR after visits were arranged. The CPS worker also
confirmed that petitioner had not provided the child with any support during this period or
otherwise attempted to fulfill any of his parental duties. The CPS worker also explained that while
these proceedings were pending, petitioner was involved in another CPS case related to different
children who are not at issue in this appeal. According to the CPS worker, despite petitioner having
contact with CPS in regard to that prior investigation, “he did not once ask about” S.G.-1. Based
on the evidence, the circuit court found, on the record, as follows: “Clearly the evidence establishes
by clear and convincing evidence that [petitioner] has provided no contact or support and no bond
with the child, and as such has abandoned [the child].” It is undisputed that no adjudicatory order
was entered following this hearing. 2
In November of 2021, petitioner appeared for the dispositional hearing, marking his first
appearance in the matter. The DHHR presented testimony from a CPS worker. Ultimately, the
court found that petitioner’s conduct demonstrated that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that the
child’s welfare required termination of petitioner’s parental rights. Accordingly, the court
terminated petitioner’s parental rights. 3 It is from the dispositional order that petitioner appeals.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
2
We do note that, following the perfection of petitioner’s appeal in this matter, the circuit
court entered an “Adjudicatory Order for Respondent . . . Nunc Pro Tunk [sic].” Because
petitioner’s argument on appeal is disposed of under the specific language of Rule 27 of the Rules
of Procedure for Child Abuse and Neglect Proceedings and addressed below, it is unnecessary to
address the effect of the entry of this order subsequent to petitioner’s appeal.
3
The mother’s parental rights were also terminated. The permanency plan for the child is
adoption in the current placement.
2
evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although there
is evidence to support the finding, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. However,
a reviewing court may not overturn a finding simply because it would have decided
the case differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner raises only one assignment of error concerning a narrow legal issue.
According to petitioner, it was error to proceed with the termination of his parental rights because
the circuit court failed to comply with Rule 27 of the Rules of Procedure for Child Abuse and
Neglect Proceedings when it did not enter an adjudicatory order. 4 Rule 27 provides that
[a]t the conclusion of the adjudicatory hearing, the court shall make findings of fact
and conclusions of law, in writing or on the record, as to whether the child is abused
and/or neglected in accordance with W. Va. Code § 49-4-601(i). The court shall
enter an order of adjudication, including findings of fact and conclusions of law,
within ten (10) days of the conclusion of the hearing, and the parties and all other
persons entitled to notice and the right to be heard shall be given notice of the entry
of this order.
According to petitioner, the court’s failure to enter an adjudicatory order prejudiced him because
“[c]ounsel for [petitioner] could never prove the seriousness of the allegations against [him] due
to not being able to provide court orders to her client.” We find, however, that this argument does
not entitle petitioner to relief, as the record shows that petitioner willfully refused to participate in
the proceedings.
Indeed, the original petition including petitioner as a named respondent was filed
approximately fifteen months prior to the dispositional hearing when petitioner made his first
appearance. While petitioner would have this Court believe that the lack of an adjudicatory order
caused him to believe the proceedings were not serious, it is clear that petitioner abandoned the
proceedings from the outset. We refuse to reward petitioner for his failure to participate simply
because the circuit court did not fully comply with Rule 27. This is especially true in light of the
4
In his brief, petitioner makes passing reference to the circuit court’s alleged failure to enter
other orders or find probable cause in regard to the child’s emergency removal. He also sets forth
several assignments of error early in his brief, only to abandon all but one in his actual argument.
This is in violation of Rule 10(c)(7) of the Rules of Appellate Procedure, requiring a brief to
“contain an argument exhibiting clearly the points of fact and law presented . . . and citing the
authorities relied on.” Petitioner’s assignment of error in his argument section is clear that it
concerns only the application of Rule 27, which governs adjudication. As such, we decline to
address any issue other than the circuit court’s failure to enter the adjudicatory order.
3
fact that petitioner does not challenge the sufficiency of the evidence against him at adjudication
or the circuit court’s adjudication of him for abandonment. Instead, petitioner simply seeks relief
from this Court because he chose to ignore the seriousness of the proceedings against him and the
possibility that his parental rights may be terminated. Upon our review, he is not entitled to relief.
Finally, because petitioner does not directly challenge the termination of his parental rights
and, instead, asserts that termination could not proceed in the absence of an adjudicatory order, we
similarly find that he is entitled to no relief. On appeal, petitioner cites to cases that have no bearing
on this issue before the Court. Specifically, he cites to In re Beth Ann B., 204 W. Va. 424, 513
S.E.2d 472 (1998), wherein this Court granted relief upon the lower court’s failure to conduct a
dispositional hearing. Given that the circuit court below held the necessary hearings, which
petitioner acknowledges, it is difficult to understand why he believes this case entitles him to relief.
He similarly relies on In re J.A., 242 W. Va. 226, 833 S.E.2d 487 (2019), wherein this Court
granted partial relief upon a circuit court’s failure to enter a dispositional order that addressed all
of the children at issue. Again, this case does not present a fact pattern similar to the one currently
before the Court and is, therefore, not controlling. On the contrary, we have previously explained
that “[o]nce there has been a proper finding of abuse or neglect, the proceedings move into the
dispositional phase, which is governed by W.Va.Code § [49-4-604].” State v. C.N.S., 173 W. Va.
651, 656, 319 S.E.2d 775, 780 (1984). As addressed above, the court properly found that petitioner
abandoned the child, a finding petitioner does not challenge on appeal. As such, the court was free
to proceed to disposition once it made this finding.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 14, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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